In the Interest of A. M. S.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the trial court erred in failing to allow Strickland to proffer evidence which may be relevant in defense to the petition for termination of his parental rights.

Strickland complained when the juvenile court cut off testimony relating to circumstances of the murder apparently not reported in Strickland v. State, 257 Ga. 230 (357 SE2d 85), and Strickland v. State, 260 Ga. 28 (389 SE2d 230). Specifically, the juvenile court interrupted Strickland’s testimony and the following transpired: “JUDGE WHEELER: Excuse me, Ms. Pace, are we getting close to the murder date now? MS. PACE: Yes, your Honor, we are. JUDGE WHEELER: And we are not going to try the murder case again in this Court. That’s been tried twice in superior court; it’s been appealed twice in Supreme Court. Court will take judicial notice of those decisions and what it said in there including the entire file before this Court. I’m not going to try that murder case in this Court. It’s on termination of parental rights. MS. PACE: Your Honor, the allegations in the petition for [termination of] parental rights speak to the moral unfitness and I think it does, this is a civil case. Those were criminal cases and while it may be res adjudicata as to the criminal case, I don’t believe that the facts and circumstances of that case are excluded from this court. JUDGE WHEELER: Not only would I not allow it to be tried again, but degree of proof in a murder case, *333criminal case, is beyond a reasonable doubt, it’s clear and convincing in this Court. Now, I’m not going to try that murder case again in this case, it’s that simple. MS. PACE: . . . Your Honor, the evidence . . . we are trying to elicit here, would relate to the state of mind at the time of the murder. JUDGE WHEELER: That was determined by the jury in the superior court. MS. PACE: And I would make a continuing offer of this evidence. JUDGE WHEELER: All right, it is well noted.”

“While it is a well settled rule that in order to preserve a ground of objection relating to the exclusion of oral testimony it is necessary for the complaining party to show what he expects to prove and that the evidence is material, relevant and beneficial (Griffin v. Henderson, 117 Ga. 382 (2) (43 SE 712)), it is equally true that where an offer of proof is necessary it is error for the trial judge to deny counsel an opportunity to state what he proposes to prove by the evidence offered. Stephen W. Brown &c. Assoc. v. Gowers, 157 Ga. App. 770, 781 (6) (278 SE2d 653).” Hendrix v. Byers Bldg. Supply, 167 Ga. App. 878, 880 (2) (307 SE2d 759).

In the case sub judice, Strickland’s attorney stated that she was “trying to elicit [testimony relevant] to [Strickland’s] state of mind at the time of the murder.” However, the juvenile court did not allow her to make proffer of the specific testimony she intended to illicit. In view of this court’s holding in In the Interest of J. L. M., 204 Ga. App. 46 (1), 47 (418 SE2d 415), this constituted error as such testimony may be relevant to the issue of termination of Strickland’s parental rights. “[T]he murder of one parent by another does not automatically result in a forfeiture of the latter parent’s parental rights, [In the Interest of H. L. T., 164 Ga. App. 517, 518 (298 SE2d 33)], but instead must be considered together with other evidence of parental unfitness. See id. at 518-520.” In the Interest of J. L. M., 204 Ga. App. 46 (1), 47, supra.

“In considering a petition for termination of parental rights, the court first must determine whether there exists clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). Such misconduct or inability may be found if, inter alia, the child is found to be a deprived child as defined in OCGA § 15-11-2; this deprivation results from a lack of proper parental care or control; the lack of care or control is likely to continue or will not likely be remedied; and this continued deprivation will or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). A finding of unfitness must center on the parent alone, and must be based on clear and convincing evidence of present unfitness, not merely upon evidence of past unfitness. In the Interest of H. L. T., 164 Ga. App. 517, 520 (298 SE2d 33) (1982). Termination of parental rights is a severe measure authorized only under compelling *334circumstances when demonstrated by clear and convincing evidence. Heath v. McGuire, 167 Ga. App. 489, 491 (306 SE2d 741) (1983).” In the Interest of J. L. M., 204 Ga. App. 46 (1), 47, supra.

Decided March 16, 1993 — Reconsideration denied April 1, 1993 Linda A. Pace, for appellant. Michael J. Bowers, Attorney General, Margot M. Cairnes, Staff Attorney, Nardone & Read, Robert G. Nardone, Dorothy V. Murphy, for appellees.

Consequently, the case sub judice should be remanded for further consideration of any evidence relating to parental fitness, including circumstances of the crime which form the central basis of the petition for termination of Strickland’s parental rights. See In the Interest of J. L. M., 204 Ga. App. 46 (1), supra, where the father’s conduct in murdering the child’s mother was relevant in determining whether the father’s parental rights should be terminated.

I am authorized to state that Judge Cooper joins in this dissent.